In California Superior Court, if a party asked for the photos in discovery and was told there are no pictures which is untrue, then the photos cannot be offered into evidence by the responding party without a sound explanation for not producting them in discovery and for the false discovery response. In California Superior Court, if no party asked for particular documents in discovery (such as photos), then the photos can be used at trial as exhibits.
By: Robert Stempler (Please see DISCLAIMER below)
CONSUMER LAW OFFICE OF ROBERT STEMPLER
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If you are already involved in litigation, then this would be an excellent question to direct to the attorney or law firm representing you in the lawsuit itself. He or she should be able to explain what was requested, what was produced, and the strategy regarding any remaining evidence the attorney(s) believe(s) is still in the possession of the defendant. If the defendant was in possession of relevant, responsive evidence at the time a response was served, but that evidence was not produced in response to the request, then there should be good grounds for a motion in limine (a pre-trial motion) asking the court to exclude that evidence from trial.
Answers I provide on Avvo are for informational, educational, and entertainment purposes only and do not establish an attorney-client relationship between my law office and either the person posting the question or anyone else reading the question and response. California law, where I am licensed to practice, requires that attorneys enter into a written retainer agreement with clients and unless and until anyone does so, it is not my intention to create an attorney-client relationship. If you desire specific legal advice upon which you can rely and act, then I strongly recommend you retain an attorney with proper credentials and experience in your area.